Mullen (Kevin) v. State ( 2015 )

 with memory and concentration, and the prosecution violated Brady v.
Maryland, 373 U.S. 83 (1963). The record supports the district court's
findings and conclusions, and we conclude the district court did not abuse
its discretion by denying Mullen's motion to withdraw his guilty plea.
Mullen claims that newly discovered evidence, the victim's
mental health records, supports a finding of actual and factual innocence
of the original charge. However, `Nile question of an accused's guilt or
innocence is generally not at issue in a motion to withdraw a guilty plea."
Hargrove v. State, 100 Nev. 498, 503, 686 P.2d 222, 226 (1984). Moreover,
the district court found that Mullen exaggerated the differences between
the victim's statements to her mental health counselor and the victim's
prior statements and that the victim's statements to her counselor did not
contradict her statements to police or testimony at the preliminary
examination. The evidence supports the district court's findings, and we
conclude the district court did not abuse its discretion.
Second, Mullen claims that the district court abused its
discretion by finding that he had no right to access the victim's mental
health records. In resolving Mullen's motion to withdraw his guilty plea,
the district court determined that Mullen "cannot use the [victim's] mental
health records for any purpose, including to support the instant Motion to
Withdraw Guilty Plea." However, the district court went on to address the
merits of Mullen's contentions, including the victim's mental health
records, before denying the motion. Therefore, Mullen fails to
demonstrate prejudice because the district court considered the mental
health records when resolving his motion to withdraw his guilty plea. To
the extent Mullen claims the district court erred by finding that he would
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not have been able to use the records at trial, Mullen pleaded nobo
contendere, rendering this issue moot.'
Third, Mullen claims that the district court erred in denying
his motion to dismiss based on vindictive prosecution. The district court
did not address the merits of this claim because, on the day the motion
was to be argued, Mullen changed his plea, and the district court denied
the motion as moot. This issue was not preserved for appeal and was
waived. See Webb v. State, 91 Nev. 469, 470, 538 P.2d 164, 165 (1975).
Having considered Mullen's claims and concluded that no
relief is warranted, we
ORDER the judgment of conviction AFFIRMED.
gaitta
J.
J.
'Furthermore, we note that Mullen had a pending motion for a
qualified protective order, in which he sought to obtain the victim's mental
health records, when he chose not to litigate the motion and plead nobo
contendere. See United States v. Ensminger, 567 F.3d 587, 593 (9th Cir.
2009) ("The guilty plea is not a placeholder that reserves [a defendant's]
right to our criminal system's incentives for acceptance of responsibility
unless or until a preferable alternative later arises. Rather it is a grave
and solemn act which is accepted only with care and discernment."
(internal quotation marks omitted)).
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cc: Hon. James E. Wilson, District Judge
State Public Defender/Carson City
Attorney General/Carson City
Lyon County District Attorney
Carson City District Attorney
Carson City Clerk
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